MARTHA GREENBLATT v. BOROUGH OF NORTH PLAINFIELD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MARTHA GREENBLATT and

MARTIN GREENBLATT,

Plaintiffs-Appellants,

v.

BOROUGH OF NORTH PLAINFIELD,

Defendant-Respondent.

____________________________________________

June 25, 2014

Before Judges Ashrafi and St. John.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1332-12.

Martha Greenblatt and Martin Greenblatt, appellants pro se.

Eric M. Bernstein & Associates, L.L.C., attorneys for respondent (Eric M. Bernstein, of counsel and on the brief; Patricia C. Melia, on the brief).

PER CURIAM

Plaintiffs Martha Greenblatt (Martha) and Martin Greenblatt (Martin) appeal the April 5, 2013 order of the Law Division dismissing their complaint with prejudice against defendant Borough of North Plainfield. After reviewing the record in light of the contentions advanced on appeal, we affirm.

I.

Plaintiffs challenge the decision of the Law Division, on defendant's motion to dismiss and subsequent motion for reconsideration, granting reconsideration and dismissing the lone-surviving claim for private nuisance.

We discern the following facts from plaintiffs' complaint, giving them the benefit of all reasonable factual inferences. See Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989).

The record discloses that Martha is the owner of commercial property (the Building) in North Plainfield. Martin manages the Building and maintains an office there. According to their certifications, Martin entered the Building on May 8, 2012, and discovered that foul-smelling water was rushing into the basement, flooding it. He was connected to defendant's Department of Public Works (the Department), and was informed that assistance was forthcoming.

Soon after, Martin noticed that a Department truck was already located on Somerset Street in front of a manhole. After he approached the workers, they informed him that they were "cleaning out" a backed-up sewer line. Shortly thereafter, the initial flooding ceased. However, approximately two hours later, the rush of water into the basement recommenced. Martin again contacted the police, but this time was unable to reach the Department. However, the same Department crew responded and again cleared the main sewer line. There was no more flooding that day. On May 10, Martin again noticed flooding in the basement, called the Department, and workers quickly responded. The Department again "jetted" the system. On August 14, the Department imaged the sewer line and the Department represented that "no problems were found in the Borough's line." There has been no further flooding in the Building.

On May 11, plaintiffs filed a Notice of Claim and, on September 27, a four-count complaint (the First Complaint) against defendant for (1) negligence in maintaining the sewer lines; (2) negligence in failing to inspect the basement flooding; (3) violating the Torts Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, by its inaction; and (4) negligence by permitting a "terrible stench" to remain in the basement. Defendant filed a motion to dismiss the First Complaint, arguing that plaintiffs failed to state a cause of action because there was no "dangerous condition" under N.J.S.A. 59:4-2 from which it could be held liable. In addition, defendant argued that plaintiffs filed their complaint before the six-month waiting period had been exhausted, contrary to N.J.S.A. 59:8-8.

On September 14, 2012, the court dismissed the First Complaint, without prejudice, concluding that plaintiffs failed to set out a cognizable claim because they did not "make a showing" that "the flooded basement was a 'dangerous condition' under the Tort Claims Act," or that defendant's response was palpably unreasonable. The court also agreed that plaintiffs neglected to comply with the six-month waiting period.

On October 3, 2012, plaintiffs filed a Second Complaint under a separate docket number, asserting the exact same factual allegations and four claims from the First Complaint and added a fifth cause of action for private nuisance, alleging that the defendant totally and intentionally disregarded their plight despite the existence of "its duty of care to take reasonable measures to avoid the risk of causing economic damages" to plaintiffs.

Defendant moved to dismiss the Second Complaint for failure to state a cause of action, again arguing that there was no dangerous condition and that its response was "far from palpably unreasonable." Accompanying the motion was a certification from James Rodino, Director of the Department, who stated that the Department had received and responded to two separate requests on May 8, 2012 regarding a sanitary sewer line at the Building. Rodino certified that on both occasions, Department workers responded by "jetting" the sewer line, that is, forcing water through it to clear any blockage.

On January 25, 2013, a second judge granted defendant's motion in part, dismissing without prejudice the first four counts sounding in negligence.1 However, the judge denied the motion with respect to the fifth, private nuisance claim.

On February 14, the Borough filed a reconsideration motion under the docket number from the First Complaint. Consequently, the judge denied the motion on March 8, noting that the challenged order was not issued under that docket number. However, the judge permitted defendant to re-file the motion on March 11, notwithstanding the fact that such re-filing occurred after the twenty-day time limit under Rule 4:49-2 had expired.

In support of its motion for reconsideration, defendant noted that it was relying on a "new argument" that N.J.S.A. 59:2-3, in light of the judge's previous determination that there was no dangerous condition nor palpably unreasonable conduct by the public entity, "acts as a bar" to plaintiffs remaining private nuisance cause of action. Defendant further contended that the Second Complaint failed to identify "what it is [the Borough] did to cause the purported nuisance to exist," and thus did not plead all of the elements of a private nuisance claim. Defense counsel noted that a laser inspection of the main sewage line revealed no obstruction.

After arguments, the judge granted the defendant's motion and dismissed the private nuisance claim, explaining:

The plaintiff's private nuisance cause of action, which is governed by [N.J.S.A.] 59:2-3(d), also requires a showing of "palpably unreasonable" - - and that is the standard I failed to apply last time - - holds that public entity is liable if there is palpably unreasonable behavior.

I have already determined that there was no palpably unreasonable behavior by the Borough in this matter and, therefore, the court must follow that and I also must dismiss this claim.

The judge's decision, which dismissed the Second Complaint in its entirety, was memorialized in a written order entered on
April 5, 2013. Plaintiffs filed a timely notice of appeal from that order.

On appeal, plaintiffs contend that reconsideration was inappropriate both procedurally, because defendant did not timely file its motion, and substantively, because defendant failed to proffer any new information justifying a rehearing of the earlier judgment. Plaintiffs also challenge the dismissal of their nuisance claim, principally arguing that the motion judge erroneously determined that defendant's conduct was not "palpably unreasonable."

II.

We first address plaintiffs' argument that defendant's motion for reconsideration should have been denied because it was not filed within the applicable time period. We disagree.

A Rule 4:49-2 motion for reconsideration "is a matter within the sound discretion of the [c]ourt, to be exercised in the interest of justice." Cummings v. Bahr, 295 N.J. Super.372, 384 (App. Div. 1996)(internal quotation marks omitted). In Union County Improvement Authority v. Artaki, LLC, 392 N.J. Super. 141 (App. Div. 2007), we held that the trial judge was "well within the scope of his discretion" in addressing the substantive merits of the movant's untimely application because it raised "significant issues" concerning whether consolidation of separate condemnation proceedings was appropriate. Id.at 146. We observed that our procedural rules must be "'construed to secure a just determination,'" and may be relaxed under circumstances where strict adherence "'would result in injustice.'" Ibid.(quoting R.1:1-2).

Here, defendant's failure to adhere to the time requirement was the result of the technical error of filing the motion for reconsideration under the previous docket number, but within the time period. Under these circumstances, relaxation of the rules was warranted to ensure a proper and just determination.

We turn now to plaintiffs' contention that the Law Division erred in dismissing their private nuisance claim against defendant.

Where a complaint is dismissed for failure to state a cause of action pursuant to Rule 4:6-2(e), we review the dismissal de novo, applying the same standard that governed the motion judge. Frederick v. Smith, 416 N.J. Super. 594, 597 (App. Div. 2010), certif. denied, 205 N.J. 317 (2011); Smerling v. Harrah's Entm't, Inc., 389 N.J. Super. 181, 186 (App. Div. 2006). Such review "is limited to examining the legal sufficiency of the facts alleged on the face of the complaint," and, in determining whether dismissal under Rule 4:6-2(e) is warranted, the court should not concern itself with the plaintiffs' ability to prove their allegations. Printing Mart, supra, 116 N.J. at 746. If "the fundament of a cause of action may be gleaned even from an obscure statement of claim," then the complaint should survive this preliminary stage. Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 626 (1995)(citation omitted).

Public entities, including municipalities like defendant, see N.J.S.A. 59:1-3, are immune from tort liability unless a specific provision in the TCA authorizes suit. N.J.S.A. 59:2-1; Polzo v. Cnty. of Essex, 209 N.J. 51, 65 (2012). The TCA "is strictly construed to permit lawsuits only where specifically delineated." Gerber ex rel. Gerber v. Springfield Bd. of Educ., 328 N.J. Super. 24, 34 (App. Div. 2000).

A cause of action for private nuisance will lie if there is an "invasion of one's interest in the private use and enjoyment of land" and such invasion is either

(a) intentional and unreasonable, or

(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.

[Birchwood Lakes Colony Club, Inc. v. Borough of Medford Lakes, 90 N.J. 582, 591-92 (1982)(quoting Restatement (Second) of Torts 822 (1979)).]

Although the TCA itself does not explicitly address public entity liability for nuisance, our Supreme Court has held that the TCA recognizes such a cause of action as a dangerous condition of property under N.J.S.A. 59:4-2. Birchwood Lakes, supra, 90 N.J. at 593-94. However, the Court strictly construed that provision to impose liability upon a public entity as a property owner only where its actions "can be found to be 'palpably unreasonable.'" Id. at 596 (quoting N.J.S.A. 59:4-2). Thus, no liability may be imposed upon a public entity unless it is shown that the action or inaction leading to the dangerous condition was palpably unreasonable. Id. at 594.

The term "palpably unreasonable" implies "behavior that is patently unacceptable under any given circumstance." Muhammad v. N.J. Transit, 176 N.J. 185, 195 (2003)(citations omitted); see also Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 459 (2009)(to constitute "palpably unreasonable" conduct, "it must be manifest and obvious that no prudent person would approve of [the] course of action or inaction."). While the palpable unreasonableness of the challenged action is often a question of fact, see Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 130 (2001), it "may be decided by the court as a matter of law in appropriate cases." Maslo v. City of Jersey City, 346 N.J. Super. 346, 350 (App. Div. 2002).

Here, we conclude that plaintiffs' private nuisance claim was properly dismissed for failure to state a cause of action. After searching the four corners of the Second Complaint in depth and with liberality, accepting as true all factual allegations, Printing Mart, supra, 116 N.J. at 746, we determine that plaintiffs failed to allege any acts or omissions by defendant rising to the level of palpably unreasonable conduct. Without any such allegations, the TCA will not impose liability upon a municipality for a dangerous condition of its public property. See Birchwood Lakes, supra, 90 N.J. at 594-96; N.J.S.A. 59:4-2. Therefore, we affirm the dismissal of the sole remaining nuisance claim, and thus the complaint in its entirety.2

We find plaintiffs' remaining contentions to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 The hearing transcript is not contained in the record before us, but the written order notes that the claims "under N.J.S.A. 59:4 for a 'dangerous condition'" were being dismissed.

2 In her oral decision granting defendant's motion to dismiss, the judge acknowledged having neglected to apply the palpable unreasonableness standard in her earlier decision on January 25. For this reason, we reject plaintiffs' argument that reconsideration was inappropriate here.